AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 June 2019

Brockie v R

[2019] NSWCCA 120

Sexual offences
RULE 4 CRIMINAL APPEAL RULES APPLIES LEAVE REFUSED CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER ERROR OF FACT WHETHER ERROR OF LAW

Citation: Brockie v R [2019] NSWCCA 120
Court: Court of Criminal Appeal, NSW
Date: 17 June 2019
Judges: Johnson J, R A Hulme J, Wright J

Background

The applicant was convicted by a District Court jury of two offences of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from a sexual assault on a complainant while she was showering at a friend's house. The complainant had been diagnosed with congenital deafness, cerebral palsy, and a cognitive impairment. She gave her evidence using procedures reserved for vulnerable witnesses under the Criminal Procedure Act 1986 (NSW).

No technical medical evidence of the complainant's cognitive impairment was placed before the jury at trial. However, conflicting expert material existed in the Crown brief outside the trial: one report concluded the complainant fell below average intellectual capacity but did not meet the clinical definition of "intellectual disability," while another found she had a "moderate intellectual delay." Neither report was tendered.

The applicant was sentenced to a total of 7 years imprisonment with a 4-year non-parole period. He applied for leave to appeal against both conviction and sentence.

  • Whether the Crown Prosecutor made an error of fact by inviting the jury to treat the complainant's evidence differently from that of an ordinary adult witness on the basis of intellectual disability, when no such evidence had been adduced.
  • Whether the trial judge made an error of fact by finding that the complainant and two other witnesses had some form of cognitive impairment, and by directing the jury it could draw its own conclusions about their intellectual capacity without expert evidence.
  • Whether the sentencing judge made an error of fact by treating the complainant's cognitive impairment as a factor that increased the objective seriousness of the offences, again without formal evidence of that impairment.
  • Whether the sentencing judge made an error of law by denying the applicant procedural fairness, having taken into account the complainant's cognitive impairment without giving advance notice of an intention to do so.

Decision

Conviction grounds: The Court observed that, although no expert evidence was led on the clinical meaning of "intellectual disability," both parties conducted the trial on the shared acceptance that the complainant was of reduced intellectual capacity. The applicant's counsel had referred to her disability both before and during trial without objection, and both sides accepted her evidence under the vulnerable witness provisions of the Criminal Procedure Act. The Court found the absence of expert evidence cut against the applicant's complaint: without such evidence, the jury could not have reasoned that the complainant met each diagnostic criterion for "intellectual disability" in the technical medical sense.

The Court also noted that assessing the effect of reduced intellectual capacity on a witness's evidence is quintessentially a matter for the jury. Because neither party raised any objection at trial, nor sought redirection or discharge, Rule 4 of the Criminal Appeal Rules applied to exclude these matters as grounds of appeal. The consistent conduct of both counsel throughout the trial provided good reason why no such objection had been made at the time.

Sentence grounds: On the error-of-fact ground, the Court found the applicant could not complain on appeal about the judge taking into account the complainant's cognitive impairment when the applicant's own counsel had, at the sentencing hearing, advanced that same finding in support of the relative seriousness of the offences. Having invited the finding, the applicant was not in a position to challenge it later.

On the procedural fairness ground, the Court noted that the applicant's counsel had expressly agreed with the precise length of sentence the judge proposed and then imposed. That agreement denied any merit to a complaint that insufficient notice had been given before the sentence was finalised.

Orders Made

  • Leave to appeal against conviction refused.
  • Leave to appeal against sentence refused.

Key Takeaways

  • Where both parties conduct a trial on the accepted basis that a complainant has reduced intellectual capacity, a conviction appeal founded on the absence of formal expert evidence of that capacity is substantially weakened.
  • Rule 4 of the Criminal Appeal Rules bars reliance on matters as grounds of appeal where no objection, request for redirection, or application to discharge the jury was made at trial. The consistent conduct of counsel throughout the proceedings is a relevant factor in applying that rule.
  • The effect of a witness's reduced intellectual capacity on the assessment of their evidence is a question for the jury, not one requiring expert resolution.
  • Where defence counsel at sentencing agreed with the precise term proposed and later imposed by the sentencing judge, no procedural fairness complaint is available on appeal in respect of that sentence.
  • An applicant who invited the sentencing court to make a finding (here, the complainant's cognitive impairment and vulnerability) cannot later contest that finding on appeal as an error of fact.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H(1A), 61HD, 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), Divs 3 and 4 of Ch 6, Pt 5, ss 143, 306M(1), 306M(2)
- Evidence Act 1995 (NSW), s 144

Cases:
- ARS v R [2011] NSWCCA 266
- Lyndon v R [2014] NSWCCA 112
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39